Cuomo Files Intel Antitrust Suit

Ashlee Vance|The New York Times

Thursday, 5 Nov 2009 | 10:52 AM ETThe New York Times

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In 2005, Michael S. Dell’s namesake company was getting pounded. His competitors were selling personal computers and servers built on cheap, popular and powerful chips from Advanced Micro Devices, while Mr. Dell had stuck loyally with slower chips from Intel.

Mr. Otellini reminded Mr. Dell that Intel had paid Dell more than $1 billion in the last year. “This was judged by your team to be more than sufficient to compensate for the competitive issues,” he wrote. Dell delayed buying A.M.D. chips, and Mr. Otellini said in a later e-mail message to a colleague that Dell was “the best friend money can buy.”

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Intel CEO Paul Otellini

Such payments to PC makers, along with other aggressive business tactics, are at the heart of the antirust lawsuit filed against Intel on Wednesday by New York’s attorney general, Andrew M. Cuomo. Mr. Cuomo’s case — the first antitrust charges against the company in the United States in more than a decade — follows similar actions by regulators in Europe and Asia.

According to Mr. Cuomo’s lawsuit, Intel, the world’s largest chip maker, has for years used large rebates and co-marketing arrangements to talk Dell and other manufacturers into sticking with its products rather than increasing their business with A.M.D. , a much smaller chip maker.

As the supplier of about 80 percent of the central chips that power PCs and servers, Intel had monopoly power, which it abused, according to Mr. Cuomo. “Intel has used illegal threats, coercion, fines and bullying to preserve its stranglehold on the market,” he said at a news conference Wednesday. “We intend to stop them.”

An Intel spokesman, Chuck Mulloy, said the company had done nothing wrong. “Neither consumers, who have consistently benefited from lower prices and increased innovation, nor justice are being served by the decision to file a case now,” he said.

Intel, based in Santa Clara, Calif., is no stranger to antitrust controversy. The company has spent the last five years defending itself against antitrust allegations, first in Asia and then in Europe.

In May, the European Commission hit Intel with a record $1.45 billion fine for antitrust violations, which the company is appealing. Intel also faces a four-year-old antitrust lawsuit filed by A.M.D. in Federal District Court in Delaware and a continuing investigation by the Federal Trade Commission.

Although Intel has faced various antitrust claims for two decades, the cases against it have picked up steam in recent years because of developments in the chip industry.

In 2003, A.M.D., Intel’s longtime nemesis, began selling a new line of chips widely regarded as superior in design and performance to Intel’s products. The chips were good enough to lift A.M.D. from the PC market into the higher-profit server computer market for the first time and begin selling to Hewlett-Packard, I.B.M. and Sun Microsystems.

It took Intel about four years to come up with chips that matched or surpassed A.M.D.’s products in performance.

While A.M.D. did well both in sales and market share gains during that period, the company’s top executives have long argued that it could have sold far more products had Intel not used strong-arm tactics to blunt its advantage.

The lawsuit, which was filed by Mr. Cuomo in the Delaware court, stretches beyond the interests of A.M.D., which is building a $4.2 billion plant in Saratoga County in upstate New York through a spinoff company, GlobalFoundries. Mr. Cuomo argues that Intel’s behavior curtailed innovation in the industry and forced consumers and businesses to pay higher prices for computers.

Under federal antitrust law, states have the power to bring charges independently of the federal government. The F.T.C. and other states may file similar cases, much as in the government’s antitrust case against Microsoft a decade ago.

The major complaints surrounding Intel concern its use of rebates and marketing dollars to keep customers. The New York suit argues that Intel executives threatened to take away such incentives from customers if they did more business with A.M.D.

In addition, the lawsuit contends that if businesses were close to buying A.M.D.-based computers from a company like H.P. or Dell, Intel would jump in to help the computer makers sell Intel-based machines at a large discount.

Over all, the hardware makers often became dependent on Intel’s incentives to keep their computer businesses profitable, making them reluctant to make a meaningful shift to A.M.D., the lawsuit said.

Communications cited in the lawsuit show that Dell executives turned to Intel for payments to help them meet or surpass Wall Street’s expectations for quarterly financial results. When Dell finally decided to make products with A.M.D. chips, Intel reduced its chip rebates for the company by $600 million, according to the suit.

The suit also contends that Intel paid I.B.M. to halt the production of a server based on A.M.D.’s chips.

Rebate payments and other incentives provided to customers fall into a murky area of the law, according to antitrust scholars. Intel’s critics must show that it went beyond the typical actions that one would expect from a company trying to protect its business.

“A lot of what they are talking about here sounds nefarious, but others would look at it and say that is how markets work,” said John E. Lopatka, a professor and antitrust expert at Pennsylvania State University’s Dickinson School of Law.

Harry First, a professor at New York University’s School of Law, said Delaware was an odd venue for Mr. Cuomo to pick for the lawsuit against Intel. “I assume they filed there because A.M.D.’s litigation against Intel is pending there,” he said.

Piggybacking on A.M.D.’s lawsuit could make sense since most of the current cases against Intel share much of the same evidence. More than 200 million pages of documents have been exchanged between the parties in A.M.D.’s case against Intel.

Antitrust experts following Mr. Cuomo’s actions said that both A.M.D. and I.B.M. — which is based in Armonk, N.Y., and competes against Intel in the server chip market — have invested billions of dollars in chip manufacturing plants in New York.

Keith N. Hylton, a professor at the Boston University School of Law, said that Mr. Cuomo could benefit politically by taking such a prominent stand on behalf of local workers and consumers. “An attorney general is understood to be an aspiring governor,” he said. “They are politicians, and they want to be on the gravy train for big cases.”

During the news conference, Mr. Cuomo said that thwarting Intel’s abusive actions was important to consumers and businesses worldwide. “It is not just about New York,” he said.